What is a trademark/service mark?

Iowa Intellectual Property Dickinson Law Firm Des Moines, Iowa

Posted on 01/03/2012 at 03:19 PM by The Newsroom

A trademark is a word, phrase, symbol or design, or a combination of the same, that identifies and distinguishes the source of the goods of one party from those of others.  Under some circumstances, trademark protection can extend beyond words, symbols, and phrases to include other aspects of a product, such as its color or its packaging.  For example, the pink color of Owens-Corning fiberglass insulation or the unique shape of a Coca-Cola bottle might serve as identifying features.  Such features fall generally under the term "trade dress."  A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a good. In order to serve as a trademark, a mark must be distinctive – that is, it must be capable of identifying the source of a particular good.  There are generally four categories of marks:  (1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic.   The degree of distinctiveness and, thus, legal protection varies with each type of mark.  An arbitrary or fanciful mark is a mark that bears no logical relationship to the underlying product.  For example, the words "Delta," "Nike," and "Apple" bear no inherent relationship to their underlying products (respectively, air travel, athletic shoes, and computers). Arbitrary or fanciful marks are inherently distinctive and are given a high degree of legal protection. A suggestive mark is a mark that evokes or suggests a characteristic of the underlying good. For example, the word "Coppertone" is suggestive of sun tan lotion, but does not specifically describe the underlying product. Some exercise of imagination is needed to associate the word with the underlying product.   Suggestive marks are inherently distinctive and are also given a high degree of legal protection. A descriptive mark is a mark that directly describes, rather than suggests, a characteristic or quality of the underlying product (e.g. its color, odor, function, dimensions, or ingredients). For example, "Holiday Inn," "All Bran," and "Vision Center" all describe some aspect of the underlying product or service (respectively, hotel rooms, breakfast cereal, and optical services).  They tell us something about the product.  Descriptive marks are not inherently distinctive and are protected only if they have acquired "secondary meaning."   Finally, a generic mark is a mark that describes the general category to which the underlying product belongs.  For example, the term "computer" is a generic term for computer equipment. Generic marks are entitled to no protection under trademark law. Trademarks are governed by both federal and state law.  Today, federal law provides the main, and by far the most extensive source of trademark protection, although state common law actions are still available. Trademarks are like property and can be sold, licensed, or transferred from one entity to another.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.


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